UPDATE: The comment thread was largely occupied with largely substance-free sniping (plus criticism of the sniping); I deleted most of the comments, and tried to leave the more substantive ones, hoping that this might get it back on the right track.

I would take Paulsen's legal opinion significantly more seriously if he had not personally donated both to the RNC and the Bush/Cheney campaign.

If an individual believes so thoroughly in a politician to donate personal funds to the advancement of their campaign, career and values... that individual loses the ability to comment rationally and reasonably on questionable actions of said politician.

Paulsen's legal "analysis" is based on personal sentiments and political beliefs alone; it's certainly not based on reality.

It would be nice to see some attempt to refute by rational argument and/or citation any of the four points made by Paulsen.

Well for a start, look at either the U.S. statutory or ICAT definition of torture and explain how waterboarding does not fit it (e.g., under the U.S. statute, mock executions and even the threat to kill third parties are considered torture). Also, he conveniently ignores the fact that simply "not torturing" is not enough, cruel, inhumane and demeaning treatment is banned by ICAT too.

Congress can pass laws governing the conduct of the military. Where in the constitution does it say that the President, as commander in chief, is not bound by those laws.

Moreover, as a matter of constitutional law, the OLC memoranda’s most sweeping, categorical, and controversial conclusion – that at all events no statute or treaty may limit the President’s sole constitutional powers as military” Commander in Chief” to direct and conduct
the use of U.S. force – is in my opinion unquestionably correct. The Office of Legal Counsel has long and consistently defended the view, both in Republican and in Democratic administrations, that the President’s constitutional powers under Article II of the Constitution, as chief executive and as Commander in Chief of the nation’s military, afford the President substantial autonomy of action in the areas of the conduct of the nation’s foreign affairs and the conduct of war and military actions. These powers, as constitutional powers of the President, cannot constitutionally be subject to congressional regulation or control.

I have to say that I find it difficult to believe that anyone who has read, for example, the Barron/Lederman two-part Article in HLR last year could make this statement in good faith. Surely, at a minimum, you have to grapple with a long history, stretching from the Revolution through the mid-20th Century, of congressional constraints on presidential war powers. To say, as Paulsen goes on to, that it is self-evidently unconstitutional for Congress to constrain the President's constitutional powers just obfuscates the important point that it's not clear what those constitutional powers are, and the assumption that they must be, in essence, the sole power to make all war-related decisions is at least in serious tension with, if not completely undermined by, history and practice.

If Professor Paulsen argues, as I gather, that strong legal analysis and advice -- indeed, invaluable and morally upright work necessary to the defense of our nation -- was repudiated (unwisely) for political reasons, his views are likely to be viewed by most informed observers as extreme, unpersuasive, and likely politically motivated. I place his opinions in all three categories, and him in the "testicle crushing is fine by me if my president tells me so, and anyone who disagrees is unserious" category. (Make that "vice president," because Paulsen strikes me as one who believes Bush failed Cheney by dialing back from torture, secret prisons, Guantanamo, etc.)

Prof. Paulsen's views are probably handy, though, for fundraising, lathering up other extremists, and attempting to occlude an effort to prevent recurrence of wrongs.

I laughed when Eugene deleted my first comment, which juxtaposed two statements by a previous commenter simply to illustrate that there's something very odd about calling a man who does not believe in using precedent at all a serious legal scholar. And that amounts to "sniping"? Really? And Anderson's comment, also deleted, pointed out that detention and interrogation are very much part of the traditional law of nations governing war, an area that Congress has plenty of competence (contra Paulsen). He also posed a hypo to illustrate his point further.

And Anderson's comment, also deleted, pointed out that detention and interrogation are very much part of the traditional law of nations governing war, an area that Congress has plenty of competence (contra Paulsen). He also posed a hypo to illustrate his point further.

You wouuld think. But there was another part to my comment. "Substance-free sniping" includes observing that calling a hack "a serious and thoughtful scholar" rebounds upon the observor, and regretting that professors sometimes praise other professors' work when they shouldn't.

Paulsen's testimony lauds the Bybee/Yoo memos without any argument as to why they are supposedly correct or "clearly ... within the range of legitimate legal analysis." That's just weak. His argument basically amounts to "trust me on this."

I can't download the article at my present machine; anyone know whether it actually goes into any detail on why the Bybee/Yoo memos are valid?

Perhaps the son or grandson of Russian emigres has a more keen appreciation for the rule of law because his family escaped from the grip of a totalitarian state; he does not take for granted what most of us and our ancestors have always known.

And no, Paulsen's testimony does not substantively engage the Bybee-Yoo memos. Unless you count this as a "serious and thoughtful" analysis:

These powers, as constitutional powers of the President, cannot constitutionally be subject to congressional regulation or control. An act of Congress, or a treaty of the United States, that infringes upon the constitutional powers of the President of the United States is, by
definition, unconstitutional, under the straightforward reasoning of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

That's a real winner of an argument. Apparently Youngstown is still verboten.

But Paulsen does cite himself. A lot.

I have written over sixty academic articles in these fields. Of possible particular interest and relevance are several articles concerning the Constitution’s allocation of war and foreign affairs powers: The Constitutional Power to Interpret International Law, 118 Yale L. J. 1774
(2009); The Emancipation Proclamation and the Commander in Chief Power, 40 Georgia L. Rev. 807 (2006); The Constitution of Necessity, 79 Notre Dame L. Rev. 1257 (2004); Youngstown Goes to War, 19 Const. Comm. 215 (2002). In addition, I note that much of my
scholarship concerns more generally the separation of powers and the independent province and duty of the executive branch with respect to constitutional, statutory, and treaty interpretation:
Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227 (2008); The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003); Nixon Now: The Courts and the Presidency After Twenty-Five Years, 83 Minn. L. Rev. 1337 (1999); The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Georgetown L. J. 217 (1994): Protestantism and Comparative Competence: A Reply to Professors Levinson and Eisgruber, 83 Georgetown L.J. 385 (1994); The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81 (1993). Finally, also of relevance, I have written several articles in the field of legal ethics and professional responsibility, including especially articles concerning the role of attorneys representing the executive branch of the U.S. government, the structure of attorney-client privilege and confidentiality with respect to representation of the U.S. government, and the ethical and professional responsibility duties of government attorneys: A Constitutional Independent Counsel Statute, 5 Widener L. Symposium J. 111 (2000); Nixon Now, supra; Dead Man’s Privilege: Vince Foster and the Demise of Legal Ethics, 68 Fordham L. Rev. 807 (1999): Who “Owns” the Government’s Attorney-Client Privilege? 83 Minn. L. Rev. 473 (1998); Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and its Limits, 61 Law &Contemp. Prob. 83 (1998).

I appreciate the defense, but in actuality, Professor Volokh's deletions of my comments were reasonable. My comments were basically directed at my general impression of Prof. Paulsen's scholarship, rather than the specifics of his testimony on torture. Nothing wrong with trying to prevent the thread from being hijacked.

... Re: Paulsen's argument, Brian Tamanaha found it something less than serious and thoughtful; take a look.

Paulsen reminds us that he is a constitutional law and legal ethics professor and he assures us that Bybee's and Yoo's analysis is right. Nuff said. Based upon his credibility, we should simply accept Paulsen's conclusion that waterboarding is not "torture" in legal terms (even if something like this happens). The many people who think otherwise, including the top military lawyers who opposed the OLC legal analysis at the time, are misguided or wrong.

But Dilan, surely your general impressions of Prof. Paulsen's scholarship are relevant, given that you are reasonably informed on separation of powers questions, and this:

I don't know enough about the separation of powers questions to have an informed opinion, but Paulsen is a serious and thoughtful scholar, and his views struck me as worth passing along.

Surely Paulsen's merits as a scholar are open to criticism. That was my point, as well. For another scholar to characterize him as on the one hand, a serious and thoughtful scholar, and on the other hand, someone who doesn't believe in precedent. . . .

Well, I think that says something about legal academia. I think I may actually agree with Judge Posner about something...

Folks: I deleted a large bunch of comments; it's possible I may have erred as to one or more, either because I missed the substance, or because I hit the wrong key. If you feel that you had some substantive points that you'd like to repost, please feel free to do so. For now, even with the grousing about the deletions, this thread has a much higher substance-to-sniping ratio than it did before the deletions, so I feel happy that I did indeed delete the comments, even if I may have erred as to some.

The substance in the criticism of Prof. Paulsen based on his view of precedent was particularly easy to miss, since it wasn't put at all explicitly. If it were put it explicitly and with some reasoned justification, the criticism would have been mistaken: Prof. Paulsen's view, which is (roughly) that courts must be loyal to the Constitution and not to precedent, and that therefore they ought not follow constitutional precedent that they on reflection believe is mistaken, strikes me as an eminently credible and thoughtful position (though I'm not at all sure that I'd follow it). But I wouldn't have deleted it, because then it would have clearly appeared as reasoned argument, which the original comment did not.

The substance in the criticism of Prof. Paulsen based on his view of precedent was particularly easy to miss, since it wasn't put at all explicitly. If it were put it explicitly and with some reasoned justification, the criticism would have been mistaken: Prof. Paulsen's view, which is (roughly) that courts must be loyal to the Constitution and not to precedent, and that therefore they ought not follow constitutional precedent that they on reflection believe is mistaken, strikes me as an eminently credible and thoughtful position

It also strikes me as undermining legal opinions that he gives that claim to be based on precedent. In other words, if he claims that under X or Y case, President Bush had the right to order torture, his critics can rightly ask where he gets off arguing that such cases are dispositive.

It also undermines any legal opinion he gives that claims to be directly based on the constitution, because in the real world, precedent does carry the day. For instance, he may not like Youngstown, but it exists and American Presidents are not at liberty to ignore it.

Bottom line is it seems to me that if you don't buy into the system of precedent that is at the root of the American jurisprudential system, that doesn't leave you with much to say about it. Certainly nothing that the rest of us should feel at all persuaded by.

Moreover, as a matter of constitutional law, the OLC memoranda’s most sweeping, categorical, and controversial conclusion – that at all events no statute or treaty may limit the President’s sole constitutional powers as military” Commander in Chief” to direct and conduct
the use of U.S. force – is in my opinion unquestionably correct.

If this reasoning is correct, then why did the framers specifically grant Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces;" (art 1 Section 8 of the Constitution)?

If the Commander in Chief's power is excusive and without restriction, any grant of authority to congress is null and void, even if that power is granted by the same Constitution. This does not accord with the concept of checks and balances that appears to be one of the guiding principles of the Constituton.

It makes more sense to see this as a compromise- Congress sets the broad rules and the President fills in the strategic and tactical details. This setup would have been very familiar to the framers- it's basically how the army functioned during the war for independence. The Continental Congress did not dictate details- it set forth broad policy, which Washington translaed into detailed planning. (I would argue that it was Congress's inability to manage anything during that time, much less a war, that led to the designation of the President as CINC).

First, as has already been noted upthread, Paulsen can't possibly say that the Yoo/Bybee interpretation of the commander in chief power is "unquestionably correct" when Youngstown clearly held that it wasn't. He's almost blind to the OLC role here despite having worked there-- the OLC MUST obey Supreme Court decisions. The Court has NEVER said that the President has complete and plenary warmaking power. The Court has certainly given the executive branch deference, but it has never said that deference is complete.

Second, there is absolutely no basis for Paulsen's conclusion that the torture analysis is correct. Like Bybee and Yoo, Paulsen acts as if torture is just a pure matter of opinion that everyone disagrees about. In fact, mock executions have always been considered torture, and there's extensive caselaw, legislative history of the Torture Act, and drafting history of the Convention Against Torture that holds this. There are also various cases on sleep deprivation, slamming people into walls, and use of methods in combination.

Paulsen must, by this point, know about these cases. So why does he pretend they don't exist and pretend that Yoo and Bybee were writing on a blank slate?

His main claim is that the critics of Yoo and Bybee substitute ideology for legal analysis. But it seems to me you can't make that claim unless you want to basically become a critical legal studies type and say that all legal analysis is indeterminate. If any legal proposition has extensively clear support, it's that mock executions are torture.

His last substantive point is that just because the lawyers authorized something doesn't mean they endorsed it. But he is basically deliberately ignoring what actually happened here. If the Administration basically says "we want to do something that is evil and illegal, please give us the legal cover to do it", it really doesn't matter whether the lawyer is ENDORSING the conduct, as he is clearly part of the criminal conspiracy. Similarly, I don't really see why we should worry too much about deterring legitimate advice, any more than we worry about deterring legitimate lawyer-client advice when we prosecute unethical tax lawyers who help their clients dodge taxes.

If this reasoning is correct, then why did the framers specifically grant Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces;" (art 1 Section 8 of the Constitution)?

There are two very different things here that seem to me unfortunately intertwined. The first is the question of how International Law interacts with the Constitution as a general matter. The second is the distribution of power between the legislative and executive branches of the government under that Constitution.

For instance, the Torture Act seems to be undoubtedly in the second category since I think Congress would be well within Art I to pass such a law even in the absence of any international law on the subject whatsoever. It's a total red herring. Thus the matter of waterboarding seems to me (I know C Gittings, if he's still around, will disagree) to be a purely domestic Constitutional affair -- Congress passed a law, the Executive accepted the law but pushed the interpretation (leaving aside any conclusions for the time being, since no one is being convinced at this point) while some claimed that the Executive could not have been bound by the law in the first place. It seemed entirely of a kind with disputes about the Clean Air Act or any other legislation -- i.e. not one that belongs in an exegesis of international law in the first place.

The other plank of his thesis, however, seems much less controversial once separating from what he's welded it to -- that treaties may not change the Constitutional allocation of powers and that the actors in that government cannot be bound by outside forces. A treaty that deprives Congress of the right to declare war, or forbids a war that Congress has declared, is obviously unconstitutional. So is a treaty that places ICJ judgment above domestic courts.

Paulsen's attempts to mix these together to make his point is disingenuous at best and outright dishonest at worst. Whether or not International Law can bind the US Constitution has nothing whatsoever to do with whether Congress can bind the CINC's ability to unilaterally decide how the US prosecutes a war.

Congress may not by the exercise of one of its general, enumerated legislative powers enact a statute that impairs the Commander-in-Chief power of the President (whatever one understands that power to be).

Wow, I missed that gem on the first read through. Reason must be right -- those articles giving Congress the power to makes rules for the military and regarding captures must have been repealed or else such a distinguished professor would not write that.

This is starting to feel like the old unitary-executive theories -- proponents of executive supremacy latch on to an academically debatable theory and then pretend that it means what they want to believe. Whether or not the executive is unitary has nothing to do with the scope of exclusive executive power and neither does the question of whether international law can have binding constitutional effect.

But in theory, such [executive] power properly extends to all matters of military strategy and conduct, including rules of engagement with respect to members of an enemy force. This includes interrogation. This includes the imposition of military justice and punishment. This includes torture.

And now we see -- he is playing the same bait-and-switch game. He started talking all reasonable about international law and then, whamo, starts getting into purely domestic constitutional law without support (no, citing yourself doesn't count) and in the face of explicit constitutional text to the contrary.

But the point of critics of the Bush Administration’s position was not really that Congress, rather than the President, had the power to order the torture (or coercive interrogation) of enemy prisoners. The objection, rather, was to the specter of torture itself. The fact that Congress had prohibited such conduct by statute, implementing the Convention Against Torture, was merely the vehicle for making the charge of presidential lawlessness. (Surely the critics of President Bush would not have been more pleased if Congress, by statute, had ordered torture). The concern was not with Congress’s prerogatives; the point was not a separation-of-powers point, but a torture point.

That point derives, ultimately, from ideals of international law, embodied in both the Geneva Conventions and the Convention Against Torture and from the policy and moral judgments about proper conduct in time of war (and otherwise) that are embodied in those international agreements. One can fairly argue about matters of policy and morality concerning captured enemy combatants. But that is largely beside the legal point. The legal point is that the force and interpretation of these treaties, for the United States, is a matter of U.S. constitutional law. And U.S. constitutional legal principles, properly understood, indicate that determining such force, interpretation, and continued validity is a power almost entirely committed to the foreign affairs and military powers of the President of the United States.

He admits that Congress wrote a statute, but then proceeds to say that the President can interpret or suspends treaties.

Paulsen can't possibly say that the Yoo/Bybee interpretation of the commander in chief power is "unquestionably correct" when Youngstown clearly held that it wasn't.

I think this discussion was held on this site before, and it was pointed out that OLC has consistently held the position that Youngstown constrains only the President's exercise of domestic powers. (There is certainly language in Justice Jackson's opinion that looks in that direction.) So the Paulsen/Yoo/Bybee position is certainly the one with historic (and to some extent judicial) precedent on its side.

OLC has consistently held the position that Youngstown constrains only the President's exercise of domestic powers

It's one thing to hold this position. It's something else to pretend that Youngstown doesn't exist and completely fail to mention it. Trouble is, what Yoo did is the latter. Which is very similar to completely failing to mention the long history of US courts treating waterboarding as a form of torture. These omissions are glaringly, brazenly obvious, and they tell us the memos are a joke.

Suppose that LBJ had directly ordered the My Lai killings of women and children in particular, invoking his CINC power and claiming that only terror and murder would break the will of North Vietnam's southern supporters.

Would that be a Constitutionally "uncheckable" use of the CINC power under the Constitution, on Paulsen's view? If not, why not?

Anyone who thinks the example's absurd can ask whether Congress could have forbidden carpet bombing during WW2, including the A-bomb attacks.

it was pointed out that OLC has consistently held the position that Youngstown constrains only the President's exercise of domestic powers

That's fine if OLC wants to think that. But OLC has to remember that the courts are not bound to defer to its interpretations. A client receiving advice is entitled to hear about Youngstown and to be advised (1) of OLC's reading and (2) of the possibility that the courts might not agree.

I think this discussion was held on this site before, and it was pointed out that OLC has consistently held the position that Youngstown constrains only the President's exercise of domestic powers.

I wrote a bit about Paulsen's attempt to separate out domestic powers from international ones, but I removed it for space. Like everything else he rights, it's correct for what it's worth but he tries to sell it for much much more.

The Torture Act is unquestionably a restriction on the President's exercise of international and war-making powers. It might be an unconstitutional one (reading Youngstown as applying only to domestic affairs so there's no explicit SCOTUS bar) but it is such a restriction. Paulsen's failure to engage that issue is an egregious omission.

I don't want to rehash the old debate, and this is hardly my field, but I think it perfectly permissible for a lawyer at a government agency to conduct his legal analyses within the framework of settled agency practices and interpretations, so that a particular work product addresses only new issues. Most of the memos, court opinions, and law review articles I read presume a lot of background knowledge.

to conduct his legal analyses within the framework of settled agency practices and interpretations

That's fine, if you TELL YOUR CLIENT THAT'S WHAT YOU'RE DOING.

The problems with the torture memos have always been two - substantive and procedural, if you like.

Apart from the substantive legal analysis, which has shown to be egregious on several points, there's also the "procedural" requirement of providing the client with balanced advice that acknowledges multiple sides to an issue. The torture memos fail miserably here. No client reading them could think that there was any prospect of the law's meaning anything but what Bybee/Yoo said it did.

If it's always OLC's practice to issue oracular memos that admit no possibility of different results, then that's a huge problem at OLC, and a possible defense for Bybee and Yoo.

But, agency practice aside, they are professionals; they are licensed by the bar; they had a duty to provide the client the best legal advice available, regardless of any pattern of agency practice. PARTICULARLY where, for goodness' sakes, we're talking about TORTURE, a felony that could land a client in jail for 20 years (or worse).

If it's always OLC's practice to issue oracular memos that admit no possibility of different results, then that's a huge problem at OLC, and a possible defense for Bybee and Yoo.

Regarding OLC's normal practices, I think it's helpful to pay attention to Doug Kmiec, who "was once head of the Office of Legal Counsel, during the administrations of Ronald Reagan and George H.W. Bush." He mentions this idea: the possibility that the memos were "crafted in order to support preexisting policies and acts." Kmiec made the same point elsewhere:

the look of the opinion — that it was written to justify after the fact — is a breach of the practice of that office

Thread is probably dead, but I'm just now reading comments further. How is it possible that the OLC could have concluded that Youngstown only applies to the President's domestic powers? From the 1981 case, Dames&Moore v. Regan:

Justice Jackson's concurring opinion elaborated in a general way the consequences of different types of interaction between the two democratic branches in assessing Presidential authority to act in any given case.

Justice Jackson himself recognized that his three categories represented "a somewhat over-simplified grouping," 343 U.S., at 635, 72 S.Ct., at 870, and it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.

453 U.S. 654, 668-69 (emphasis added).

Yes, I know, Dames&Moore was about Iranian assets that came within the jurisdiction of the U.S., and so arguably (EV) is really just a domestic powers case. But that, I think, is such a bad argument, that I'm not going to bother to examine it. Iranian assets. Iranian hostage crisis. An executive agreement with, you know, Iran. All involved here.

Paulsen: Moreover, as a matter of constitutional law, the OLC memoranda’s most sweeping, categorical, and controversial conclusion – that at all events no statute or treaty may limit the President’s sole constitutional powers as military” Commander in Chief” to direct and conduct the use of U.S. force – is in my opinion unquestionably correct.

Wow. That's pretty far out there, considering that even Bybee's own successors at OLC backed off the original assertion by Yoo and Bybee that the Torture Act could not constitutionally restrict the president.

For Jack Goldsmith's view, see The Terror Presidency. Even Steven Bradbury expressly disavowed the extreme view articulated in the Yoo/Bybee memo (and now endorsed by Paulsen.)

In particular, see Bradbury's quotation of his own 2005 response to Senate questions:

The federal prohibition on torture, 18 U.S.C. §§ 2340-2340A, is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation of detainees conducted pursuant to the President's Commander in Chief authority. The statement to the contrary from the August 1, 2002, memorandum, quoted above, has been withdrawn and superseded, along with the entirety of the memorandum, and in any event I do not find that statement persuasive. The President, like all officers of the Government, is not above the law. He has a sworn duty to preserve, protect, and defend the Constitution and faithfully to execute the laws of the United States, in accordance with the Constitution.

Well, the testimony does not pass the Daubert standard, as it is a series of naked opinions, without explanation how the conclusions were reached. I assume greater detail is provided in the article, but all I can get is the abstract.

What is missing from the testimony, and what, in my opinion makes it fundamentally disingenuous, is that it applies the wrong standard. I have said before in a comment, is that the position taken by these memos would not be "frivolous" if taken in a brief. As works of advocacy, however shoddy, they are insufficiently baseless to warrant sanctions or discipline. But the memos are not supposed to be works of advocacy, they are supposed to be advising the client. The fact that other reasonable attorneys, or even law professors might agree with the assessment is not relevant in this context.

Advising a client is quite simply making one's best guess, based on all information, particularly case law, what a court will say. For example, it may reasonably be one's own legal opinion that Roe v. Wade is "unquestionably" wrong. However, that does not justify writing a memo to the chief of police that the state has the "unquestionable" power to criminalize abortion and that he is therefore free to go down to the local clinic and arrest the staff because in that lawyer's quite reasonable legal opinion the unconstitional statute should still be valid. Such a memo would be even more egregious if the attorney failed to mention that Roe v. Wade might, perhaps dictate a different result.
True, there is no Supreme Court ruling that water-boarding or other enhanced interrogation methods constitute torture, and no ruling whether the statute is to be broadly or narrowly construed. But this alone should have prevented the unequivical nature of the opinions.

But add in the cases where the U.S. has prosecuted waterboarding as torture, the use of common parlance with respect to interrogation techniques that constitute torture, and, I'm sorry, foreign and international rulings on what constitutes torture and it utterly fails to assess what the state of the law is, as opposed to what is basically an argument as to what the administration wanted it to be. There simply is, without doubt, a substantial possibility that the U.S. courts would rule that waterboarding and perhaps other techniques described in the memos do in fact constitute torture. Failure to mention this fact made the memos dishonest.

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